D.C. Proposes Stringent Lead-Based Paint Permitting and Lead-Safe Work Practices Rule
 
August 19, 2011
 
Amy L. Edwards- Washington

Proposed Rules Would Apply to Both Commercial and Residential Structures

On July 22, 2011, the District Department of the Environment (DDOE) issued a proposed rule (29 DCMR 006035, July 22, 2011) to implement the District of Columbia’s (the “District”) Lead Hazard Prevention and Elimination Act of 2008, D.C. Official Code § 8-231.01 et seq., and its Lead Hazard Prevention and Elimination Amendment Act of 2010, D.C. Law 18-348 (collectively, the “DC Lead Laws”). Comments are due on the proposed rule by August 22, 2011. The proposed rules will impose substantial new regulatory burdens upon owners of both residential and commercial buildings.

The DC Lead Laws focus on ensuring that pregnant women and children are not exposed to lead-based paint (LBP) and LBP hazards in dwelling units, common areas of multifamily properties and child-occupied facilities. The proposed rules attempt to achieve these objectives by requiring:

• owners of dwelling units constructed prior to 1978 to disclose to purchasers or tenants “information reasonably known” about LBP, LBP hazards and any pending actions ordered by the mayor before a purchaser or tenant can be obligated under any purchase agreement or lease
• owners of pre-1978 dwelling units and “other structures” (e.g., commercial buildings) to obtain abatement and/or renovation permits for certain types of activities
• owners and their contractors to use certain lead-safe work practices in conducting lead-based abatement and renovation activities (including the need to conduct clearance testing)
• owners to provide prospective tenants recent clearance reports upon a change in occupancy of the rental unit
• training and certification of the individuals and companies conducting lead-based paint related activities in the District

The proposed rules would enhance the District’s ability to conduct inspections, to seek reimbursement of its costs, to assess penalties and fines, and to require relocation of property occupants. Loose, peeling, or chipping paint in pre-1978 multifamily properties and child-occupied facilities would be prohibited and could trigger an enforcement action. The proposed rules are also drafted so that some of the lead-safe work practices would apply to all structures in the District, including commercial buildings. There does not appear to be any statutory authority for DDOE to do so.¹ Together, these requirements will greatly increase the time and cost of leasing rental units and conducting routine renovations in pre-1978 buildings in the District.

Summary of the Proposed Rules

The preamble to the proposed regulations states that “[t]he proposed rules [will] allow DDOE to fulfill the intent of the Acts in a manner that is effective and protective of public health, without unduly burdening the regulated community.” 29 DCMR 006035. According to DDOE, the proposed regulations will strengthen the federal law related to renovation work (EPA’s Renovation, Repair and Painting Rule, or “RRP Rule”) that disturbs paint in pre-1978 housing, by adding clearance and permitting requirements for major renovation projects involving the disturbance of large amounts of old paint that can present a significant risk of generating LBP hazards. The proposed regulations also establish the prerequisites for becoming District-certified LBP inspectors, risk assessors, abatement workers and supervisors, dust sampling technicians and lead project designers. Procedures governing access by DDOE personnel, landlords and their agents to properties under the DC Lead Laws are also covered in the proposed regulations.

DDOE Proposes Abatement and Renovation Permitting Requirements

The proposed rules will require permits for both LBP “abatement” and “renovation” work. The first question will be whether the proposed activity constitutes “abatement” or “renovation.” The answer will depend in part on the size of the area to be impacted, the cost of the proposed work and whether comprehensive window or door replacements are planned. Lead-safe work practices will need to be followed even for smaller jobs where no abatement or renovation permit is required.

The DC Lead Laws define “abatement” as “any measure or set of measures, except interim controls, that eliminates lead-based paint hazards by either the removal of paint and dust, the enclosure or encapsulation of lead-based paint, the replacement of painted surfaces or fixtures, or the removal or covering of soil, and all preparation, cleanup, disposal, and post-abatement clearance testing activities associated with such measures.” Under § 3305.1 of the proposed rules, DDOE would require a permit before a LBP abatement activity is performed on any structure – not just dwelling units and child-occupied facilities. 29 DCMR 006037. Demolition activities, for example, would require an abatement permit. Comprehensive window replacements and simple door replacements would not require an abatement permit so long as individuals trained in lead-safe work practices conducted these activities.

The DC Lead Laws define “renovation” as the “modification of any existing structure or portion thereof, that results in the disturbance of painted surfaces, unless that activity is performed as part of an abatement.” The term “renovation” includes the removal, modification, or repair of painted surfaces or painted components, the removal of building components, weatherization projects and interim controls that disturb painted surfaces. Under the proposed regulations, renovation work triggers a DDOE renovation permit when: (1) more than 500 square feet of painted surface is being disturbed by the work; or (2) the contract for the renovation work contains a total charged cost of $20,000 or more for work that disturbs paint. 29 DCMR 006039 (§ 3306.1). DDOE describes these provisions as the enforcement “hook” – where permits will only be required of those engaging in large-scale renovation.

All renovation work that does not trigger a DC renovation permit will still be subject to federal regulation under EPA’s RRP Rule.² DDOE is seeking authorization from EPA to oversee the federal RRP Program in the District. As drafted, the proposed rules incorporate EPA’s RRP required work practices and, for the most part, mirror the federal requirements. However, DDOE plans to impose more stringent requirements for certain aspects of its program. The District requirements would include:

• establishment of a renovation permit program for large-scale projects
• requiring a clearance examination upon completion of any renovation work large enough to trigger a renovation permit³
• applying the U.S. Department of Housing and Urban Development (HUD) de minimis standard of two square feet (2 ft.²) of paint being disturbed as the threshold for determining whether the federal RRP regulations apply (§ 3320.1(b))

As previously mentioned, the proposed rules also require certain clearance requirements. Renovation work will trigger a clearance requirement when: (1) a renovation permit has been issued; (2) full window replacement has occurred; or (3) simple door replacement has occurred (§ 3306). The clearance report will need to be provided to DDOE.

More Requirements for Pre-1978 Construction

For owners of dwelling units constructed prior to 1978, even more onerous requirements will apply. Owners must provide to prospective tenants both the DC-approved LBP disclosure form and a clearance report issued within the previous 12 months (§ 3310.3) before the tenant is obligated under a contract to lease the dwelling unit. Alternatively, the owner may provide either (1) a report from a risk assessor that the dwelling unit is “lead free,” or (2) three clearance reports issued at least 12 months apart within the prior seven years, provided that the property has not been the subject of any housing code violation within the prior five years.

One has to question whether there will be enough DC-certified LBP inspectors and other personnel to conduct these required clearance tests, and whether DDOE will have the staff and resources to handle the flood of permit applications and reports that will ensue if these rules are adopted as proposed. Needless to say, the LBP permitting, disclosure, and clearance testing processes may become a costly and burdensome ordeal for owners of rental units and others conducting renovation projects in residential and commercial structures in the District.

Next Steps

DDOE has specifically requested comment from the public by August 22, 2011, on the following issues:

• DDOE’s rationale for the definitions of key terms in the proposed regulations, including “abatement” (§ 3305.2) and “lead-free unit” (§ 3311.5)
• provisions related to clearance requirements:
  
  
  • § 3302.7, which would establish the clearance requirements that apply when DDOE has issued a Notice of Violation (NOV) and order to Eliminate LBP Hazards to any person or entity
  • § 3305.6, which would establish the clearance requirements that apply when an abatement permit has been issued but no NOV or Order has been issued by DDOE
  • § 3306.2, which would establish the clearance requirements that apply when a renovation permit has been issued
  • § 3311.6, which contains various clearance requirements that would apply at the time that there is a turnover of property, for which the DC Lead Laws require a clearance report
• whether the proposed prerequisites for DDOE certification for risk assessors (§ 3314.10), abatement supervisors (§ 3314.11) and lead project designers (§ 3314.12) are appropriate to ensure that these individuals have the necessary background and experience to do the work
• DDOE’s three (more stringent) changes to EPA’s RRP Rule
• identification of any elements that are necessary to administer an RRP program in the District that either may be missing altogether from the proposed rules or less stringent than the corresponding EPA regulations

We encourage owners of both residential and commercial properties to comment on the following issues as well:

• DDOE’s lack of statutory authority to regulate LBP abatement and renovation activities in commercial buildings and its unlawful attempt to apply the proposed rules to “any structure”
• the importance of coordinating the District’s requirements with existing federal requirements, and thereby eliminating duplicative or inconsistent regulation in areas such as disclosure requirements and what constitutes “lead free”
• clearance requirements in general, as well as those proposed at the time of a change of occupancy in rental units (a recent clearance report, or three “passing” clearance reports issued 12 months apart within the previous seven years)

While ensuring the safety and health of pregnant women and children is a well-intentioned and important goal, DDOE should be encouraged to focus on providing the necessary guidance and financial resources to those owning or conducting abatement or renovation work in residential dwellings with deteriorated and peeling LBP. DDOE should not be creating burdensome permitting and disclosure requirements that may simply be setting property owners up for “gotcha” type of enforcement penalties, as has so often happened in the LBP enforcement arena. Many of the proposed procedures may not be needed to achieve the DC Lead Laws’ ultimate goals.

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¹ The DC Lead Laws apply solely to dwelling units, multifamily properties and child-occupied facilities constructed prior to 1978 in the District. They do not apply to commercial buildings and other non-residential structures. The District cannot expand by regulation the scope of the statute. See, e.g., Schism v. United States, 316 F.3d 1259, 1284-85 ("[s]imply put, an agency cannot do by regulation what the applicable statute itself does not authorize.")

² See 40 C.F.R. §§ 745.80 et seq.

³ EPA determined, in mid-July 2011, that it was not going to require clearance testing under the federal RRP Rule. Instead, a visual inspection will be sufficient.

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